IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Not Reportable
Case No: A62/2025
In the matter between:
LWANDO ROZANI First Appellant
XOLILE MAQWEQWE Second Appellant
and
THE STATE Respondent
Coram: ADAMS, AJ (RALARALA, J concurring)
Heard on: 24 April 2026
Delivered on: 29 June 2026
Summary: Criminal law - Appeal against conviction and sentence - Murder -
Attempted murder - Unlawful possession of firearm and ammunition - Common
purpose - Charge sheet not expressly alleging common purpose on all counts -
Whether defect cured by evidence in terms of s 88 of Criminal Procedure Act 51 of
1977 - Accused throughout aware State relied on participation in group enterprise -
No prejudice established - Identification evidence - Single witness - Cautionary rule -
Identification corroborated by pursuit, police observations, DNA evidence and
surrounding circumstances - Firearm possession - Firearm not recovered from
appellant - Whether personal possession proved beyond reasonable doubt -
Appellant’s version - Reasonably possibly true test - Version rejected as inherently
improbable when weighed against cumulative evidence – Sentence - Minimum
sentence legislation - Substantial and compelling circumstances found - Concurrent
sentences ordered - Whether sentence shockingly inappropriate - Appeal dismissed.
ORDER
1. The appeal against conviction is dismissed.
2. The appeal against sentence is dismissed.
JUDGMENT
ADAMS, AJ
Introduction
[1] This appeal arises from the conviction and sentence of the Appellants in the
Regional Court, Khayelitsha. The First Appellant was convicted of murder, attempted
murder and related offences arising from a sequence of events commencing at
Merse Road, Rylands on 23 September 2014 and culminating in a police pursuit and
exchange of gunfire. The Second Appellant was convicted on counts relating to
murder, attempted murder, unlawful possession of a prohibited firearm and unlawful
possession of ammunition.
[2] On 26 April 2023, the Appellants were sentenced to lengthy terms of direct
imprisonment. The effective sentence imposed on the Second Appellant was 18
years’ imprisonment. Leave to appeal having been refused by the regional court, the
Appellants successfully petitioned this Court and obtained leave to appeal against
both conviction and sentence.
[3] A point in limine concerning the fairness of the proceedings arising from a
missing portion of the record was initially raised on behalf of the First Appellant.
Following the recovery and reconstruction of the missing record, that issue was
abandoned. The appeal accordingly proceeds on the merits of the convictions and
sentences imposed by the court a quo.
Common cause facts
[4] Much of the factual matrix was either formally admitted or remained
undisputed. It is common cause that on the evening of 23 September 2014, an
incident occurred at Murcia Road, Rylands, involving several armed assailants and
Mr. and Ms. Wentzel. During the incident, Mr. Wentzel was assaulted and threatened
with a firearm whilst seated in a motor vehicle. Ms. Wentzel fled the scene and heard
multiple gunshots whilst escaping.
[5] Following the incident, the perpetrators entered a white Nissan Tiida and
departed. A police pursuit followed shortly thereafter. During the chase an exchange
of gunfire occurred between the occupants of the Nissan Tiida and members of the
South African Police Service.
[6] The confrontation culminated in one suspect being fatally wounded. The
deceased was later identified as Ayanda Leon Oyana. The Nissan Tiida was
recovered bearing damage consistent with the exchange of gunfire. The post -
mortem examination confirmed that Oyana died as a result of multiple gunshot
wounds, including a fatal wound to the chest.
[7] Formal admissions were recorded in terms of section 220 of the Criminal
Procedure Act 51 of 1977 (‘the CPA’). The integrity of the chain of custody, the
handling of exhibits, the admissibility o f forensic reports and the reliability of the
scientific processes employed were admitted. The forensic evidence therefore stood
as objectively reliable evidence before the court a quo.
The evidence before the court a quo
[8] The State’s case comprised eyewitness testimony, forensic and ballistic
evidence, DNA analysis, photographic evidence, scene plans, formal admissions
and various affidavits admitted into evidence.
[9] Officer Abrams testified concerning the recovery of cartridge cases, bullet
fragments and firearms from the various scenes. Forty -three cartridge cases,
together with additional cartridge cases and bullet fragments, were collected and
secured. A firearm together with ammunition was also recovered and subjected to
forensic examination.
[10] Ballistic analysis established that the firearms recovered were functional and
capable of firing ammunition. The evidence confirmed the occurrence of the shooting
but did not identify which individual discharged a particular firearm.
[11] DNA evidence was obtained from various exhibits. Swabs were taken from
components of firearms, clothing items, gloves, a beanie and a grey cap. The beanie
was linked to Accused 1. The grey cap contained a mixture of DNA attributable to
Accused 1 and the Second Appellant. A glove contained DNA mixtures linking
certain accused to exhibits recovered during the investigation. Significantly, however,
none of the accused could be linked by DNA evidence to the interior components of
the Nissan Tiida.
[12] The post -mortem report confirmed the identity of the deceased and
established the cause of death. Photographic evidence depicted the various crime
scenes, the route of the police pursuit and the condition of the Nissan Tiida after the
exchange of gunfire.
Admissions and their evidential effect
[13] The admissions recorded in terms of section 220 of the CPA materially
narrowed the issues in dispute. The integrity of the forensic evidence, the chain of
custody and the scientific reliability of the DNA and ballistic evidence were not
challenged.
[14] The DNA evidence did not directly place either Appellant inside the Nissan
Tiida at the critical moment nor did it identify a specific shooter. Its significance lay in
the inferential and corroborative value it provided when viewed together with the
remaining evidence.
[15] Similarly, the ballistic evidence established the occurrence of the shooting and
the use of firearms but did not identify the individual who discharged any particular
weapon. The post -mortem evidence established the cause of death but not the
identity of the individual responsible for the fatal shot.
[16] These evidential limitations were expressly recognised by the court a quo.
The convictions were not based upon any single item of evidence but upon the
cumulative effect of all the evidence considered together.
The Grounds of Appeal
[17] A proper reading of the First Appellant’s heads of argument reveals that the
appeal is founded upon the following principal grounds:
17.1 The trial court erred in permitting, alternatively relying upon, what is
alleged to have been an irregular amendment of the charge sheet to introduce
the doctrine of common purpose in respect of Counts 3, 5 and 7, thereby
occasioning prejudice to the First Appellant.
17.2 The trial court erred in finding that the First Appellant was one of the
perpetrators involved in the robbery charge in Count 3 and one of the gunmen
responsible for the offences charged with in Counts 4 and 5.
17.3 The trial court erred in convicting the First Appellant on Count 7, namely
the unlawful possession of a firearm, on the basis of joint possession or
common purpose.
17.4 The trial court committed material irregularities in relation to the conduct
of the cross -examination of witnesses, particularly that of Amon, thereby
infringing the First Appellant’s right to a fair trial.
17.5 The trial court erred in rejecting the First Appellant’s version
notwithstanding the contention that it was reasonably possibly true.
17.6 The sentence of 15 years’ imprisonment is alleged to be disturbingly
inappropriate, disproportionate to the offences and circumstances of the case,
and such as to induce a sense of shock.
[18] A proper reading of the Second Appellant’s heads of argument reveals that
the appeal is founded upon the following principal grounds:
18.1 The court a quo erred in finding that the Second Appellant was one of
the occupants of the white Nissan Tiida pursued by the police and in
accepting the identification evidence linking him to the vehicle and the
offences in question.
18.2 The court a quo erred in convicting the Second Appellant on the charges
relating to the unlawful possession of a firearm (Count 6) and unlawful
possession of ammunition (Count 8), notwithstanding his denial that he was
ever in possession of either the firearm or the ammunition.
18.3 The court a quo erred in finding that the Second Appellant acted in
concert with the First Appellant, alternatively in furtherance of a common
purpose, in relation to the offences of murder (Count 4) and attempted murder
(Count 5).
18.4 The court a quo failed to properly evaluate the Second Appellant’s
(Count 5).
18.4 The court a quo failed to properly evaluate the Second Appellant’s
version and erred in rejecting it, notwithstanding the contention that his
explanation was reasonably possibly true and ought therefore to have
resulted in his acquittal.
18.5 The court a quo erred in imposing a sentence of 18 years’ imprisonment,
which the Second Appellant contends is disturbingly inappropriate,
disproportionate to the offences and the circumstances of the case and
induces a sense of shock.
The Approach on Appeal
[19] The principles governing criminal appeals are settled. The State bears the
onus of proving the guilt of an accused beyond reasonable doubt. In assessing
whether that burden has been discharged, the evidence must be considered
holistically and not piecemeal. As was emphasised in S v Van der Meyden 1, the
proper enquiry is whether, upon a conspectus of all the evidence, there exists a
reasonable possibility that the accused’s version may be true. The Court is not
required to determine whether each individual item of evidence establishes guilt
beyond reasonable doubt, but whether the totality of the evidence excludes any
reasonable doubt.
[20] It is equally trite that a court of appeal will not lightly interfere with factual
findings made by a trial court. In S v Francis 2, the Appellate Division held that the
powers of a court of appeal to interfere with findings of fact are limited because the
trial court enjoys the advantage of seeing and hearing the witnesses testify. Absent a
material misdirection, such findings are presumed to be correct and will only be
disturbed if clearly wrong. This approach aligns with the time -honoured principles
articulated in R v Dhlumayo and Another 3, which dictate that an appellate tribunal
must show deference to the trial court's factual findings unless they are
demonstrably wrong.
1 1999 (1) SACR 447 (W) at 448f–i
2 1991 (1) SACR 198 (A) at 204C–E
3 1948 (2) SA 677 (A)
Evaluation of the grounds of appeal
The Alleged Irregular Amendment of the Charge Sheet
[21] The First Appellant contends that the trial court erred in permitting the
introduction of the doctrine of common purpose in respect of Counts 3, 5 , and 7,
notwithstanding that common purpose was not expressly pleaded in those counts.
[22] During argument, however, counsel for the First Appellant , Mr Paries,
correctly conceded that the heads of argument conflated the provisions of sections
86 and 88 of the CPA. He further accepted that there was no formal application by
the State to amend the charge sheet in terms of section 86.
[23] The complaint therefore does not concern an amendment of the charge sheet
but rather whether any omission in the charge sheet was cured by the evidence in
terms of section 88 of the CPA. In this regard, section 88 provides that a defect
arising from the omission of an essential averment in the charge is cured by
evidence led at trial, provided the issue is not raised before judgment.
[24] The Respondent submits that from the outset the State’s case was, that the
perpetrators acted together in the commission of the offences and that the First
Appellant was fully aware of the case he was required to meet. The defence
advanced throughout was one of complete denial and mistaken identity, rather than
a contention that he was present but did not associate himself with the conduct of
the others.
[25] The issue is therefore not whether the charge sheet was amended, but
whether the First Appellant suffered any prejudice as a result of the omission. The
Respondent contends that no such prejudice was established and that the trial court
was entitled to consider the doctrine of common purpose on the evidence before it.
[26] The Appellants accepted that the evidence established the occurrence of the
robbery, the police pursuit, the exchange of gunfire and the death of Oyana. Their
principal contention was that the State failed to prove beyond reasonable doubt that
principal contention was that the State failed to prove beyond reasonable doubt that
they were participants in those events. The Appellants adopt a common stance, and
their respective counsels advanced arguments that mirror one another. I do not
propose to repeat those submissions seriatim but shall address them as a single
body of contentions to avoid repetition.
[27] Counsel submitted that the identification evidence was unreliable,
emphasizing the stressful circumstances under which the observations were made,
the delay between the incident and the identification procedure and the absence of
an identification parade.
[28] It was further contended that the forensic evidence was inconclusive. The
Appellants submitted that the DNA evidence did not place them in the Nissan Tiida
at the relevant time, that the ballistic evidence did not identify the shooter and that
the State’s case depended upon impermissible inferential reasoning.
[29] Counsel for particularly the First Appellant nevertheless properly made
several important concessions. It was accepted that the lighting conditions at M erse
Road were sufficient to permit observation. Although the incident occurred at night,
the area was illuminated by streetlights and nearby residential lighting. The
adequacy of the lighting was therefore not genuinely in dispute.
[30] Counsel further accepted that Mr . Wentzel enjoyed approximately four
separate opportunities to observe at least one of the perpetrators during the
unfolding events. The challenge was therefore directed not at an absence of
opportunity for observation but at the reliability and weight of the subsequent
identification.
[31] It was further accepted by both Appellants that their presence in areas
relevant to the commission of the offences was not entirely disputed and that the
forensic evidence admitted in terms of section 220 remained uncontested.
Evidence of identification
[32] The First Appellant challenges the trial court’s reliance on the identification
evidence of Mr . Wentzel. The applicable principles are well established. In S v
Mthetwa4, Holmes JA cautioned that because of the fallibility of human observation,
honesty does not necessarily guarantee reliability. Factors such as lighting, visibility,
proximity, opportunity for observation, prior knowledge of the accused, the duration
of observation and the mobility of the scene must all be considered.
[33] The court a quo approached the evidence with precisely the caution required
by Mthetwa. It expressly recognised the stressful circumstances under which the
observations were made, the lapse of approximately three months before the
photographic identification and the absence of an identification parade.
[34] However, the trial court also took account of factors enhancing reliability.
Counsel for the Appellants properly conceded before this Court that the adequacy of
the lighting was not genuinely disputed, and that Mr . Wentzel enjoyed four separate
opportunities to observe one of the perpetrators. The evidence therefore cannot be
characterised as involving a fleeting observation under poor conditions.
[35] Furthermore, the court a quo did not rely upon the identification evidence in
isolation. It considered the identification together with the objective forensic evidence
and the surrounding circumstances. This approach accords with the cautionary
principles articulated in Mthetwa and discloses no misdirection.
Common purpose
[36] The Appellants contend that the State failed to establish the requirements for
liability based on common purpose. The argument overlooks the factual findings
made by the court a quo.
[37] The evidence established that the perpetrators acted as a group from the
inception of the robbery through to the police pursuit and the eventual exchange of
4 1972 (3) SA 766 (A) at 768A–C
gunfire. The evidence further established continuing participation in the criminal
enterprise. The Appellants did not disengage from the enterprise. On the contrary,
the evidence established continuing participation during the armed flight from the
police.
[38] The principles governing common purpose have been authoritatively stated in
S v Mgedezi 5 and subsequently affirmed by the Constitutional Court in Thebus v S6.
Liability arises where an accused associates himself with the conduct of others
pursuant to a common design and actively participates in the execution thereof.
[39] It is common cause that shots were fired at police officers and that police
returned fire. Oyana was killed during that exchange. The issue is therefore not
whether the fatal shot was fired by a police officer or a co -perpetrator but whether
the resulting death was a foreseeable consequence of the common criminal
enterprise. The court a quo correctly concluded that it was. Individuals who embark
upon an armed robbery, flee in a hijacked vehicle and engage in a gun battle with
police officers must necessarily foresee the possibility of death resulting from that
conduct. The requirements of dolus eventualis were accordingly established.
[40] In this regard, the court a quo correctly relied on the reasoning in S v Molimi
and Another 7 and Thebus, recognising that persons who engage in an armed
confrontation with police officers must necessarily foresee the possibility of death
resulting from that conduct. The fact that Oyana may have been struck by police fire
does not interrupt the chain of causation where the fatal consequence flowed directly
from the execution of the common criminal enterprise.
5 1989 (1) SA 687 (A)
6 (CCT36/02)[2003] ZACC 12; 2003(6) SA 505 (CC); 2003 (10) BCLR 1100 (CC); 2003 SACR 319 (CC) (28
August 2003)
7 2008 (2) SACR 76 (CC)
Forensic and circumstantial evidence
[41] The Appellants criticised the court a quo for relying on DNA and other forensic
evidence. Much of the State’s case was circumstantial. The proper approach to
circumstantial evidence remains that set out in R v Blom 8. The inference sought to
be drawn must be consistent with all the proved facts and the proved facts must
exclude every reasonable inference save the one sought to be drawn.
[42] The criticism is misplaced. The trial court expressly recognised the limitations
of the forensic evidence. It accepted that the DNA evidence was circumstantial and
that the ballistic evidence did not identify a particular shooter.
[43] The trial court correctly directed itself to these principles. It did not treat the
DNA evidence, ballistic evidence or identification evidence as individually decisive.
Instead, it considered their cumulative effect. The DNA evidence linked the
Appellants to exhibits associated with the perpetrators. Their presence in relevant
locations was not entirely disputed. The sequence of events connected the robbery,
the flight, the police pursuit and the ensuing exchange of gunfire.
[44] Having considered the totality of the evidence, the court concluded that the
only reasonable inference consistent with the proved facts was that the Appellants
were participants in the criminal enterprise. That conclusion accords with the
principles articulated in Blom.
[45] The court a quo carefully considered the versions advanced by the
Appellants. Those versions were not rejected merely because they appeared
improbable. They were rejected because, when measured against the objective
evidence and inherent probabilities, they could not reasonably possibly be true. The
DNA evidence, the identification evidence, the undisputed presence of the
Appellants in relevant locations and the surrounding circumstances collectively
rendered the versions advanced by the Appellants untenable.
rendered the versions advanced by the Appellants untenable.
[46] The trial court’s rejection of the Appellants’ versions accords with the
8 1939 AD 188 at 202–203
principles articulated in S v Shackell 9 . An accused is entitled to an acquittal if his
version is reasonably possibly true, even if improbable. However, a court is not
obliged to accept a version which is so inherently improbable that it cannot
reasonably possibly be true when evaluated against the objective facts.
[47] The court a quo did not reject the Appellants’ versions merely because they
were improbable. It rejected them because they were irreconcilable with the
objective evidence and the proven facts. That conclusion cannot be faulted.
Sentence
[48] Sentencing is pre -eminently a matter for the discretion of the trial court. It is
settled law that an appellate court will not disturb a lower court's sentence unless the
judicial discretion was improperly exercised, a material misdirection occurred, or the
punishment is shockingly inappropriate.10
[49] The court a quo correctly applied the triad formulated in S v Zinn 11, namely
the crime, the offender and the interests of society. The record demonstrates that the
court a quo correctly considered the personal circumstances of the Appellants, the
seriousness of the offences and the interests of society. It also had regard to the
prescribed minimum sentencing regime applicable to certain counts.
[50] The approach to departures from minimum sentences is governed by S v
Malgas12, while appellate interference is justified only where the sentence is vitiated
by a material misdirection or is so disproportionate as to be “shocking”, “startling” or
“disturbingly inappropriate”.13
[51] The court a quo found substantial and compelling circumstances and deviated
from the prescribed minimum sentences. It further ordered substantial concurrency
between the sentences imposed. In doing so it displayed the mercy referred to in S v
9 2001 (4) SA 1 (SCA) para 30
10 R v Dhlumayo and Another 1948 (2) SA 677 (A). see also S v Pieters 1987 (3) SA 717 (A) at 727F–
H
11 1969 (2) SA 537 (A)
12 2001 (1) SACR 469 (SCA)
H
11 1969 (2) SA 537 (A)
12 2001 (1) SACR 469 (SCA)
13 Malgas supra at para 12
Rabie and later endorsed in S v RO 14. The effective sentences imposed reflected a
careful balancing of all relevant considerations.
[52] Viewed holistically, the effective sentence imposed does not induce a sense
of shock. The offences were grave, involved the use of firearms, an armed
confrontation with police officers and the loss of life. No material misdirection has
been demonstrated. Nor can it be said that the sentences imposed induce a sense of
shock or are disturbingly inappropriate. No basis exists for appellate interference.
Conclusion
[53] The criticism directed at the court a quo cannot be sustained. The record
demonstrates a careful and methodical evaluation of the evidence. The trial court
distinguished between evidence sufficient to sustain convictions and evidence that
was not, acquitting where the State failed to discharge the onus and convicting only
where guilt had been established beyond reasonable doubt.
[54] The court a quo correctly evaluated the identification evidence, properly
appreciated the limitations of the forensic evidence, correctly applied the doctrine of
common purpose and appropriately rejected the Appellants’ versions as not
reasonably possibly true.
[55] The convictions are supported by the evidence and the sentences imposed
disclose no basis for appellate interference.
Order
[56] In the result, I propose the following order:
[56.1] The appeal against conviction is dismissed.
[56.2] The appeal against sentence is dismissed.
14 S v RO & Another 2010 (2) SACR 248 (SCA), para 30. ; S v Rabie 1975 (4) SA 855 (A) at 862D–F,
____________________
M.F. ADAMS
Acting Judge of the High Court
I agree, and it is so ordered.
____________________
N.E. RALARALA
Judge of the High Court
Appearances:
For the Appellant: A Paries
Attorneys for Appellant: Davies Attorneys
For the Respondent: N Breyl
Attorneys for Respondent: Directorate of Public Prosecutions, Western Cape